Just Management

Stray Comments Don’t Always Prove Age Bias

Ms. Martin was a long-term, highly-valued employee of Lockheed Missiles & Space Company. In 1991, she was laid off as result of a stack ranking based on performance and seniority. She sued for age discrimination.

Ms. Martin provided some evidence to prove age discrimination. A memo written by a manager referred to a fund that gave preferred salaries to “young people with specific critical skills.” There was testimony that a manager had said no salary increases were to be given to anyone over 60, and no management positions to anyone over 40. A supervisor told Ms. Martin in 1975 that since she was over 40 she couldn’t take management training.

Although this is evidence of discrimination in pay and promotions, the court ruled it was irrelevant to the issue of whether she was discriminatorily laid off. There was no evidence that the people who made the comments had anything to do with her layoff.

In contrast, an employee with 35 years at another company was fired by his company president, allegedly for insubordination. He was replaced by an employee under 40. During the trial, the employee proved he was not insubordinate, and that it was therefore a wrongful termination. The employee also argued it was age discrimination.

His proof of age discrimination was two comments made by the company’s president many years before the termination. On one occasion, the president stated he did not want to visit his grandmother on Thanksgiving because he did not like to be around old people. Another time, he said that everybody over 30 years old should be put in a concentration camp.

Whether or not these were jokes or had nothing to do with work, the jury decided that the termination was age biased. The employee won $500,000.

Do Employees Have to Show Up for Work?

It is one of the essential responsibilities of employees to show up for work. Yet this historic truth is now being eroded by the courts through the Americans with Disabilities Act.

Since 1992, more than twice as many claims have been filed for disability discrimination as for sexual harassment. There are lots of large verdicts in disability cases, because juries are sympathetic.

Who is protected under the various disabilities laws is not necessarily obvious. The laws protect only “qualified individuals” with impairments that limit a “major life activity” and who can perform the “essential functions of the job.”

A recurring issue is whether showing up for work is an essential function of working. In one recent case, a temporary employee was fired after being absent six days in the first three months of employment. In another case, a regular employee was terminated after 12 weeks of absence in a seven-month period.

Both employees were absent due to their disabilities. The employees argued they should have been reasonably accommodated. But the courts held they were not protected “qualified individuals,” because showing up was an essential function of their jobs.

In both of these cases, the employees held service jobs where showing up truly was an essential function. In professional positions, it may be more difficult to succeed with this argument. If an employee can’t perform at work but can function at home, a reasonable accommodation may be required.

But you only have to accommodate if the employee is disabled as defined by law. In one case, a salesman’s job required frequent air travel. However, he developed a sinus condition which prevented him from flying. Is this a disability that limits a major life activity?

The law specifies that major life activities are caring for oneself, performing manual tasks, walking, seeing, breathing, hearing, and working. The court said, “Nowhere in this listing is there any mention of ‘flying’ or anything remotely akin to flying.” The term “major life activity” does not include “every possible activity of human life.”

Even though the salesman’s ability to work was affected, the court held it was not a disability covered under the law. This decision is consistent with other opinions which held that just because people are excluded by disabilities from a few jobs in the economy, they are not necessarily disabled.

In contrast, another court ruled that a disability with no relationship to work is considered disabling under the Americans with Disabilities Act. In that case, the employee had worked for the employer for 12 years when she told her management she had a condition that prevented her from becoming pregnant. She began an experimental treatment of in vitro fertilization that caused her to miss work over the next six years. Finally, she was placed on probation and fired for excessive absenteeism. The court held that reproduction is a major life activity, and therefore she was disabled under the Act. The employer should have reasonably accommodated her absenteeism.

What you should do: With the passage of the Family and Medical Leave Act, an employer is required to give an employee with a “serious health condition” (which is broader than a disability) up to 12 weeks off per year, even if it creates an undue hardship on the employer. The 12 weeks can be taken in any increment that is medically necessary: an hour a day, a day a week, or a week a month, year after year. If disabled employees require more than 12 weeks off, you must give it to them if it would not create an undue hardship on the company site. When employees have excessive absenteeism, determine if it is due to a disability or serious health condition, and contact your HR department.

Flip a Coin. Employers Won Half of 1994 Trials!

California employers won 49% of the cases that went to trial last year. This probably means employers are becoming increasingly savvy about settling cases they would lose at trial.

The average jury verdict for the year was $875,620. This figure does not include the $89 million verdict mentioned above. The highest awards were for race discrimination, whistle-blowing, fraud and sexual harassment.

Doing Well by Doing Good

A recent study by the Gordon Group of Waban, MA, compared stock performance and market values of companies with good and poor reputations for employment practices. The findings revealed that companies with substandard reputations on workplace issues have lower valuations than companies that are well-regarded for their practices, as measured by price-to-book and price-to-sales ratios for their stock prices.

Big Verdicts & Settlements

$89 million to white supervisor and black engineer. A black employee who claimed he was denied promotions and then fired, and the white supervisor who supported him and then quit, won this amount. $80 million of the award was punitive damages to punish Hughes Aircraft, which earlier in 1994 was found to have a glass ceiling that prevented black employees from getting ahead.

Harassment verdict reduced to $3.5 million. The $7 million sexual harassment verdict reported in the last newsletter was reduced to $3.5 million. However, the woman’s lawyers say their attorneys fees, which must be paid by the employer, now top $2.7 million.

$3.2 million for disability discrimination. A high-ranking manager who developed multiple sclerosis received this amount because his employer did not go far enough to reasonably accommodate his disability. He had requested that the employer reduce his hours from 55-60 a week to 40.

$1.4 million for bad reference. A 62 year old senior quality inspector who was fired was prevented from getting another job because his former employer said he was “unqualified.”

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